About this case:

• Judgment:
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Pursuant to Order 18, rule 19 of the Rules of the Court of Judicature (Northern Ireland); the Chief Constable of the Police Service of Northern Ireland, and the Ministry of Justice (hereafter “the State”) applied for orders striking out an action brought by Mrs Martha Leonard, on the grounds that:

(a) The pleadings disclosed no reasonable cause of action and Mrs Leonard’s claim was frivolous and vexatious;

(b) By reason of principles established in relevant caselaw the circumstances on which the case was based do not give rise to a duty of care in negligence between Mrs Leonard and either defendant;

(c) Mrs Leonard was not a primary or secondary victim of any negligence for the purposes of any claim for damages in respect of psychiatric injury.

Background

In December 1972, Mrs Leonard’s 26-year-old husband Louis Leonard was murdered by persons never identified or charged, in his butcher’s shop at Main Street, Derrylin, County Fermanagh. Louis had been shot 10 times to head and torso by two different revolvers.

It was quickly established that two men had been seen by a number of witnesses the previous night “and had been associated with a large black car, a Ford Cortina or Zephyr”.

“A car fitting the description of the one seen by witnesses had been hired at Aldergrove Airport, with a mileage usage consistent with a journey to Fermanagh and back, in which bullets were found”.

Two prominent loyalists were spoken to by police, “but were never formally interviewed and no-one was ever charged in relation to the murder”.

One of those loyalists, “Suspect A” was identified as the hirer of the car and subsequently charged along with a “Suspect B” with various firearms and robbery offences, however, no steps were taken to investigate further their possible involvement in Louis Leonard’s murder and both were subsequently acquitted.

Louis’s family had known republican sympathies – so this “along with police and army activity in the area on the night of the murder, and the absence of any outcome from a flawed investigation, caused the family to suspect possible police or army collusion with loyalist terrorists, including the protection of the killers”.

In 2008 the Historical Inquiries Team issued a report, which concluded that members of the Ulster Defence Association had murdered Louis Leonard in his shop… “The motive was that he was a catholic and a republican sympathiser”, and numerous missed investigative opportunities and mistakes by the police were identified, which it concluded were due to a lack of support and guidance from senior officers.

“In particular there was loss of opportunities to link two key suspects to the investigation and supporting intelligence was overlooked, however the HET found no evidence of collusion between the police or the army and loyalist terrorists in the case”.

Mrs Leonard’s claim

Mrs Leonard brought a claim for personal injuries loss and damage, arguing that this was caused by the negligence, misfeasance in public office of the State, their servants and agents.

It was not Mrs Leonard’s case that the death of her husband was in any way due to the negligence or misfeasance in a public office of the State’s servants and agents.

Rather her claim related to the misfeasance in a public office and negligence of the servants and agents of the State who had responsibility for the investigation into the murder of Mrs Leonard’s husband after his death.

Mrs Leonard did not link her husband’s death to any act or omission by the State’s servants and agents, and there was no dependency loss claim under the Fatal Accidents Act or on behalf of the estate – therefore Mrs Leonard’s claim was limited to her own personal psychiatric injuries.

In considering the approach to applications under Order 18, rule 19 Master McCorry referred to relevant caselaw, including: Rush v Police Service of Northern Ireland and Secretary of State for Northern Ireland NIQB 28l; O’Dwyer v Chief Constable of the RUC (1997) NI 403; Lonrho plc v Fayed (1990) 2 QBD 479 Lonrho plc v Tebbit (1991) 4 All ER 973; and, E (A Minor) v Dorset CC (1995) 2 AC 633.

Decision

Master McCorry struck out Mrs Leonard’s cause of action in negligence against the police, firstly because there was no duty of care; and secondly, because Mrs Leonard had not suffered a recognisable psychiatric injury in a way which could entitle her to damages – distinguishing Mrs Leonard’s case from Alcock v Chief Constable South Yorkshire Police 4 All ER 907.

Similarly, Mrs Leonard’s causes of action in both negligence and misfeasance in public office against the Ministry of Defence were “struck out because on the facts pleaded no reasonable cause of action in either tort” was made out against the Ministry of Defence.

Master McCorry was not satisfied that the State had made out a case for the striking out of Mrs Leonard’s cause of action in misfeasance in public office against the police. Therefore, subject to Mrs Leonard amending her statement of claim to properly plead the case being made, Master McCorry refused to strike out Mrs Leonard’s pleading.